By Noah Feldman
With the swearing-in Monday of Justice Neil Gorsuch, the U.S. Supreme Court’s configuration shifts to … a 4-4 balance with a single centrist justice as the swing vote. If that sounds familiar, it should. It’s been the normal state of affairs since 1986, when Justice Antonin Scalia joined, and on some issues all the way back to Richard Nixon’s administration.
This time, of course, the configuration results from the Republican Senate’s unprecedented and successful gamble to block President Barack Obama from filling Scalia’s seat. His pick, Judge Merrick Garland, would have given the liberals a clear, consistent majority for the first time since the days of Chief Justice Earl Warren — unless and until President Donald Trump had the chance to replace one of the court’s liberals.
It’s nevertheless worth exploring the fascinating phenomenon of the enduring centrist court, and asking the question: Is it an accident? Or is it a feature of the Supreme Court in its current condition, when liberal and conservative justices are all activists?
The court’s composition follows from a feature of constitutional design that includes some luck, namely that justices can serve for life and that the president who’s in office gets to nominate the replacement (or used to). If the presidency changes parties with some regularity, and justices retire or die on an arbitrary schedule, that should ensure some balance.
The first condition has been fulfilled since the death of Franklin Roosevelt, who was elected four times and picked an astonishing nine justices if you include a chief who was already on the court. If you start with Harry Truman, the longest run of one party in the presidency has been twelve years, for two terms of Ronald Reagan and one for George H.W. Bush. Otherwise, the presidency has typically flipped parties every eight years, with Jimmy Carter’s single term leading to the only shorter flip.
The second condition hasn’t been fulfilled perfectly, because some justices retire when they like the president who will replace them. But there has been surprisingly little of that strategic choice by the justices, despite the politicization of the process. Chief Justice William Rehnquist died in office, as did Scalia. Justice Sandra Day O’Connor retired because of her husband’s failing health.
Justice Ruth Bader Ginsburg stayed on the court past Barack Obama’s presidency despite being well into her 80s and having survived not one but two bouts with cancer. If that’s not a rejection of the strategic approach, I don’t know what is.
But beyond constitutional structure, there’s another extraordinary, non-accidental fact about the centrist court: It’s been maintained in large part by individual justices’ drift to the center.
The most salient example is Justice Anthony Kennedy. He’s the swing vote today, as he has been since O’Connor retired a decade ago. But for nearly 20 years before that, Kennedy wasn’t perceived as the swing voter — O’Connor was. Kennedy was considered a reliable conservative, with a few outlying liberal opinions on equality for gay people and the abortion compromise in Casey v. Planned Parenthood, in which he wrote a joint opinion with O’Connor and Justice David Souter.
It’s not that Kennedy just seemed more liberal when O’Connor retired. He actually became more liberal. His liberal opinions in recent years on abortion and affirmative action prove this definitively. Each represented a real shift leftward from his earlier opinions on the same subject.
Kennedy’s shift had internal theoretical motivations, no doubt, grounded in the development of his jurisprudence of equal dignity. But it also resulted from the natural impulse to influence and power that comes from being the swing vote.
The court’s way of setting precedent gives enormous power to the swing voter. If there’s no majority opinion, the narrowest opinion for the result that gets five votes becomes controlling precedent.
Even if the swing voter joins the majority opinion and writes a separate concurrence, his or her narrow opinion has a way of becoming the majority opinion in future cases, as the other justices try to win the votes of the swing justice.
O’Connor made new law in this fashion. One example is her “endorsement” theory of the establishment clause. Originally introduced in a solo concurrence in a case where she provide the fifth vote, it was adopted a few years later by the majority in another case.
The upshot is that the center-most justice, measured by ideology, will always have an incentive to tack toward the middle under the existing system. For the moment, that is still Kennedy.
But when Kennedy is no longer in the center, some other justice may emerge to take center stage, literally.
I’m not guaranteeing a centrist court forever. But if Justices Ginsburg and Stephen Breyer can hold out until a Democratic president is elected, or if a Democratic Senate denies Trump any appointments until a Democrat replaces him, we may see the centrist Supreme Court remaining into the distant future.
Maybe the American people want it that way.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.